Nard v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

March 21, 2018

OLABISI NARD, Petitioner,v.SUPERINTENDENT, Respondent.

OPINION AND ORDER

JON E.
DEGUILIO JUDGE UNITED STATES DISTRICT COURT

Olabisi
Nard, a pro se prisoner, filed an amended habeas
corpus petition challenging his conviction and 40 year
sentence on June 30, 2003, in the Allen County Superior Court
under cause number 02D04-0205-FA-0054 for attempted murder.
ECF 4.

I.
BACKGROUND

In
deciding the petition, the court must presume the facts set
forth by the state courts are correct unless they are
rebutted with clear and convincing evidence. 28 U.S.C. §
2254(e)(1). Here, Nard does not dispute the Court of Appeals
of Indiana's summary:

On May 27, 2002, the State filed an Information, charging
Nard with attempted murder. Nard was subsequently convicted
and is currently serving a forty year sentence in Westville
Correctional Facility, Indiana. In 2015, Nard filed a
verified petition for writ of habeas corpus arguing that
confinement was in violation of his rights under the Fifth
and Fourteenth Amendment of the United States Constitution
because he was charged by information rather than being
indicted by a grand jury. On July 16, 2015, the trial court
denied Nard's habeas corpus petition, holding that under
Indiana Code section 35-34-1-1 the State may bring charges
via indictment or information.

On
January 16, 2017, Nard signed and placed in the prison
mailing system this amended petition for writ of habeas
corpus. ECF 4 at 5. In it, Nard raises the same issue he
raised in his state habeas proceedings: whether Indiana's
charging statute violates the Fifth Amendment of the United
States Constitution.

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

28 U.S.C. § 2254(d).

[This] standard is intentionally difficult to meet. We have
explained that clearly established Federal law for purposes
of §2254(d)(1) includes only the holdings, as opposed to
the dicta, of this Court's decisions. And an unreasonable
application of those holdings must be objectively
unreasonable, not merely wrong; even clear error will not
suffice. To satisfy this high bar, a habeas petitioner is
required to show that the state court's ruling on the
claim being presented in federal court was so lacking in
...

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